Exhibit 10.14
AMENDMENT NO. 3
TO CREDIT AGREEMENT
This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment"), dated as
of December 20, 2004, by and among Sotheby's Holdings, Inc., a Michigan
corporation ("Holdings"), Sotheby's, Inc., a New York corporation ("Sotheby's,
Inc."), Sotheby's Financial Services, Inc., a Nevada corporation ("SFS Inc."),
Sotheby's Financial Services California, Inc., a Nevada corporation ("SFS
California"), Oberon, Inc., a Delaware corporation ("Oberon"), Theta, Inc., a
Delaware corporation ("Theta"), Sotheby's Ventures, LLC, a New York limited
liability company ("Ventures LLC"), Oatshare Limited, a company registered in
England ("Oatshare"), Sotheby's, a company registered in England ("Sotheby's
U.K."), and Sotheby's Financial Services Limited, a company registered in
England ("SFS Ltd." and, collectively with Holdings, Sotheby's, Inc., SFS Inc.,
SFS California, Oberon, Theta, Ventures LLC, Oatshare and Sotheby's U.K., the
"Borrowers"), the Credit Parties identified as such on the signature pages
hereof, General Electric Capital Corporation, a Delaware corporation ("GE
Capital"), as a Lender and as Agent for the Lenders (in such capacity, "Agent"),
HSBC Bank plc and PNC Bank, National Association, as Co-Syndication Agents, and
the other Lenders, amends that certain Credit Agreement dated as of March 4,
2004, as amended as of March 24, 2004 and August 3, 2004 (as so amended, the
"Credit Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in Annex A to the Credit
Agreement.
RECITALS
A. The Borrowers have requested that the Lenders and Agent amend
the Credit Agreement as set forth herein.
B. The Lenders and Agent have agreed, on the terms and conditions
set forth below, to so amend the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the continued performance by the
Borrowers of their respective promises and obligations under the Credit
Agreement and the other Loan Documents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and Agent hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the satisfaction of
the conditions precedent set forth in Paragraph 2 of this Amendment, the Credit
Agreement is hereby amended as follows:
(a) Section 6.3(b) of the Credit Agreement is hereby amended to
delete the word "and" appearing at the end of clause (ii) thereof and to insert
the following provision at the end of such section:
and (v) from and after January 1, 2005, Holdings may purchase Senior Notes
for an aggregate purchase price not to exceed $20,000,000 during any Fiscal
Year; provided, that, after giving effect to any such purchase, the
Repurchase Liquidity Test Amount shall exceed $50,000,000.
(b) Annex A to the Credit Agreement is hereby amended to insert the
following definitions therein at the appropriate alphabetical location:
"Repurchase Liquidity Test Amount" means, as of any date, an amount
equal to (a) the Liquidity Amount minus (b) the product of (i) 15%
multiplied by (ii) the aggregate Unfunded Purchase Price Guaranty Amount
for each Work of Art and collection of Works of Art on consignment to the
Credit Parties for sale.
"Unfunded Purchase Price Guaranty Amount" means, with respect to any
Work of Art or collection of Works of Art consigned to a Credit Party for
sale, the unfunded portion of the amount, if any, such Credit Party has
committed to advance to the applicable consignor in respect of the purchase
price of such Work of Art or collection of Works of Art, as applicable,
prior to the date scheduled for the offering thereof for sale.
(c) Annex G to the Credit Agreement is hereby amended to delete the
figure "$10,000,000" appearing in paragraph (a) thereof and to insert therefor
the following figure: "$15,000,000".
2. Effectiveness of this Amendment: Conditions Precedent. The
provisions of Paragraph 1 of this Amendment shall be deemed to have become
effective as of the date of this Amendment, but such effectiveness shall be
expressly conditioned upon Agent's receipt of a counterpart of this Amendment
executed and delivered by duly authorized officers of each Borrower, the
Requisite Lenders and Agent.
3. Miscellaneous.
(a) Headings. The various headings of this Amendment are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
(b) Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart thereof.
(c) Interpretation. No provision of this Amendment shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
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(d) Complete Agreement; Confict of Terms. This Amendment constitutes
the complete agreement between the parties with respect to the subject matter
hereof, and supersedes any prior written or oral agreements, writings,
communications or understandings of the parties with respect thereto. In the
event of any inconsistency between the provisions of this Amendment and any
provision of the Credit Agreement, the terms and provisions of this Amendment
shall govern and control.
(e) Representations, Warranties and Covenants.
(i) Each Credit Party hereby represents and warrants that this
Amendment and the Credit Agreement as amended by this Amendment constitute the
legal, valid and binding obligations of such Credit Party, enforceable against
it in accordance with their respective terms except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditor's rights generally or by equitable principles relating
to enforceability.
(ii) Each Credit Party hereby represents and warrants that its
execution, delivery and performance of this Amendment and its performance of the
Credit Agreement as amended by this Amendment, to the extent a party thereto,
have been duly authorized by all necessary corporate action and do not: (1)
contravene the terms of any of such Credit Party's charter, bylaws or operating
agreement, as applicable, (2) violate any law or regulation, or any order or
decree of any court or Governmental Authority; (3) conflict with or result in
the breach or termination of, constitute a default under or accelerate or permit
the acceleration of any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which any Sotheby Entity is a
party or by which any Sotheby Entity or any of its property is bound, (4) result
in the creation or imposition of any Lien upon any of the property of any
Sotheby Entity other than those in favor of Agent, on behalf of itself and the
other Secured Parties, pursuant to the Loan Documents; or (5) require the
consent or approval of any Governmental Authority or any other Person.
(iii) Each Credit Party hereby represents and warrants that (i) after
giving effect to the amendments contained herein, no Default or Event of Default
has occurred and is continuing and (ii) all of the representations and
warranties of such Credit Party contained in the Credit Agreement and in each
other Loan Document to which it is a party (other than representations and
warranties which, in accordance with their express terms, are made only as of
an earlier specified date) are true and correct as of the date of such Credit
Party's execution and delivery hereof or thereof as though made on and as of
such date.
(f) Reaffirmation, Ratification and Acknowledgment; Reservation. Each
Borrower and each Credit Party hereby (a) ratifies and reaffirms all of its
payment and performance obligations, contingent or otherwise, and each grant of
security interests and liens in favor of Agent, under each Loan Document to
which it is a party, (b) agrees and acknowledges that such ratification and
reaffirmation is not a condition to the continued effectiveness of such Loan
Documents, and (c) agrees that neither such ratification and reaffirmation, nor
Agent's or any Lender's solicitation of such ratification and reaffirmation,
constitutes a course of dealing giving rise to any obligation or condition
requiring a similar or any other ratification or reaffrmation from such Borrower
or such Credit Party with respect to any subsequent
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modifications to the Credit Agreement or the other Loan Documents. The Credit
Agreement is in all respects ratified and confirmed. Each of the Loan Documents
shall remain in full force and effect and is hereby ratified and confirmed.
Neither the execution, delivery nor effectiveness of this Amendment shall
operate as a waiver of any right, power or remedy of Agent or the Lenders, or of
any Default or Event of Default (whether or not known to Agent or the Lenders)
under any of the Loan Documents, all of which rights, powers and remedies, with
respect to any such Default or Event of Default or otherwise, are hereby
expressly reserved by Agent and the Lenders. This Amendment shall constitute a
Loan Document for purposes of the Credit Agreement.
(g) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, TIE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE
LAWS OF THE UNITED STATES Of AMERICA.
(h) Effect. Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Amendment," "hereunder," "hereof' or words of
like import shall mean and be a reference to the Credit Agreement as amended
hereby and each reference in the other Loan Documents to the Credit Agreement,
"thereunder," "thereof," or words of like import shall mean and be a reference
to the Credit Agreement as amended hereby. Except as expressly provided in this
Amendment, all of the terms, conditions and provisions of the Credit Agreement
and the other Loan Documents shall remain the same. Each Borrower hereby
represents and warrants to each Lender and Agent that all authorizations,
consents and approvals of such Borrower's board of directors and shareholders,
and all other Persons, necessary to permit such Borrower to execute and deliver
this Amendment and to perform its obligations hereunder and under the Credit
Agreement as amended hereby, and to permit the Lenders and the Agent to enforce
such obligations, have been obtained.
(i) No Novation or Waiver. Except as specifically set forth in this
Amendment, the execution, delivery and effectiveness of this Amendment shall not
(a) limit, impair, constitute a waiver by, or otherwise affect any right, power
or remedy of, Agent or any Lender under the Credit Agreement or any other Loan
Document, (b) constitute a waiver of any provision in the Credit Agreement or in
any of the other Loan Documents or of any Default or Event of Default that may
have occurred and be continuing or (c) alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or in any of the other Loan Documents, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect.
(j) Agent's Expenses. The Borrowers hereby jointly and severally
agree to promptly reimburse Agent for all of the reasonable out-of-pocket
expenses, including, without limitation, attorneys' and paralegals' fees, it has
heretofore or hereafter incurred or incurs in connection with the preparation.
negotiation and execution of this Amendment.
(k) No Course of Dealing. The Agent and the Lenders have entered
into this Amendment on the express understanding with each Borrower that in
entering into this Amendment the Agent and the Lenders are not establishing any
course of dealing with the
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Borrowers. The Agent's and the Lenders' rights to require strict performance
with all of the terms and conditions of the Credit Agreement and the other Loan
Documents shall not in any way be impaired by the execution of this Amendment.
None of the Agent and the Lenders shall be obligated in any manner to execute
any further amendments or waivers and if such waivers or amendments are
requested in the future, assuming the terms and conditions thereof are
satisfactory to them, the Agent and the Lenders may require the payment of fees
in connection therewith.
******
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
SOTHEBY'S HOLDINGS, INC.
OATSHARE LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx ---------------------------------
Title: Chief Financial Officer Name: Xxxxxxx X. Xxxxxxxx
Title: Director
SOTHEBY'S, INC.
SOTHEBY'S
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx ---------------------------------
Title: Executive Vice President Name: Xxxxxxx X. Xxxxxxxx
Title: Director
SOTHEBY'S FINANCIAL SERVICES, INC. SOTHEBY'S FINANCIAL SERVICES LIMITED
SOTHEBY'S FINANCIAL SERVICES
CALIFORNIA, INC.
OBERON, INC. By: /s/ Xxxxxxx X. Xxxxxxxx
THETA, INC. ---------------------------------
SOTHEBY'S VENTURES, LLC Name: Xxxxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to
Amendment No. 3
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Duly Authorized Signatory
HSBC BANK PLC, as a Lender
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Corporate Banking Manager
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxx Xxxxxx-Louis
---------------------------------
Name: Xxxxx Xxxxxx-Xxxxx
Title: Vice President
COMERICA BANK, as a Lender
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
LASALLE BUSINESS CREDIT, LLC as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: First Vice President
Signature Page to
Amendment No. 3
NATIONAL CITY BUSINESS CREDIT, INC.
(f/k/a/ National City Commercial
Finance, Inc.) as a Lender
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Associate
SIEMENS FINANCIAL SERVICES, INC., as a
Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President - Credit
XXXXXXX BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Xxx Zantia
---------------------------------
Name: Xxx Zantia
Title: Vice President
Signature Page to
Amendment No. 3
Acknowledged and Agreed
as of the date first above written:
XXXXXXXX.XXX LLC, as a Credit Party
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
SOTHEBY'S FINE ART HOLDINGS, INC.
SOTHEBY'S ASIA, INC.
YORK WAREHOUSE, INC.
SPTC, INC.
SOTHEBY'S XXXXX XXXXXX, INC.
YORK AVENUE DEVELOPMENT, INC.
SOTHEBY'S THAILAND, INC.
SOTHEBY'S HOLDINGS INTERNATIONAL, INC.
SOTHEBY'S NEVADA, INC.
XXXXXXXX.XXX AUCTIONS, INC.
SIBS, LLC
each as a Credit Party
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to
Amendment No. 3